Pre‐Natal Injury and Transferred Malice: The Invented Other
| Author | Mary Seneviratne |
| Published date | 01 November 1996 |
| DOI | http://doi.org/10.1111/j.1468-2230.1996.tb02700.x |
| Date | 01 November 1996 |
Pre-Natal Injury and Transferred Malice: The Invented
Other
Mary Seneviratne”
The doctrine of transferred malice has few champions among academic lawyers. It
operates to explain the decision of a court in cases where an accused, acting with
the requisite
mens rea
of
an offence, causes a result which is unintended in some
way. For example, the accused, intending to kill A, shoots at A but misses and kills
B, who is standing next to A. The fact that the accused is found guilty of the
murder of B, even though
he
bore no ill-will towards
B,
is said to
be
based on the
notion of the ‘malice’ towards A being ‘transferred’ to
B.
Some have argued that
this doctrine is inconsistent with our notions of subjective responsibility’ and that
its use should
be
abandoned. From a different standpoint, Patient2 has argued that
the doctrine is outdated and misleading, and that a straightforward application of
the principles of
actus reus
and
mens reu
makes its use unnecessary. In many
criminal law courses, this topic tends to
be
dealt with by a cursory reference to
some nineteenth-century cases,3 with little discussion of its applicability in recent
times. In view of this, it is surprising to see the doctrine being given a new lease of
life by the Court of Appeal in
Re Attorney General’s Reference
(No
3
of
1994).4
The
facts
In the
Attorney General‘s Reference,
a man stabbed his girlfriend in the abdomen
knowing that she was pregnant. She was admitted to hospital and surgery was
performed. A cut to the wall of the uterus was discovered, but it was believed
(mistakenly as it turned out) that there had been no injury caused to the foetus. The
surgeon sewed up the wall of the uterus and prescribed a course of drugs to prevent
the onset of premature labour. The woman made
a
good recovery and was
discharged from hospital. However, just over two weeks after the attack, she
suddenly went into labour and gave birth to a daughter at
26
weeks’ gestation.
At the time of the birth it
was
discovered that the knife had penetrated the foetus,
cutting through the left side of the abdomen. The child was considered to have a
50
per cent chance of survival but, despite receiving neo-natal care, including several
surgical operations, she died
120
days later. The evidence at the trial was that the
stab wound had made no direct contribution to the baby’s death, the cause of death
being the premature birth and the complications associated with that. Before the
death of the child, the respondent had been charged with wounding his girlfriend
with intent to cause her grievous bodily harm. He had admitted the charge and was
*Principal Lecturer
in
Law, Sheffield Hallam University.
The author would like
to
thank Ian Brownlee for his comments on this article.
I
2
3
4
884
See Ashworth, ‘Transferred Malice and Punishment for Unforeseen Consequences’ in Glazebrook
(ed),
Reshaping
the
Criminal
Law
(London: Stevens,
1978).
“‘Transferred Malice”
-
A Misleading Misnomer’
(1990)
54 JCL 116-124.
R
v
Latimer
(1886)
17
QBD
359;
R
v
Pembilton
[1874-801
All
ER
1163.
[I9961
2 All
ER
10.
8
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